Update, April 2021: With the signing of the American Rescue Plan Act of 2021 into law, OWCP’s rule about presuming a COVID-19 infection took place at work for high-risk jobs was codified into law. Despite this, supervisors could still try to controvert your claim, so make sure you read through this entire article.
NBPC MEMBER ADVISORY
What should you tell Border Patrol if you or your family test positive for COVID-19?
Members, be advised that if you divulge any private or medical information to any management official while reporting COVID-19 related matters, there is a very high probability that the information you provide will be used later to controvert (challenge) any claim that you make regarding any work-related exposure to COVID-19.
There is a lot of information in this advisory, but it’s important to understand what you need to do in order to protect your rights for potential OWCP claims for a diagnosis of COVID-19.
The Union has noticed a disturbing trend in which management uses Evolving Situation Reports (ESRs) to deny or delay DOL Form CA-1 submissions or to support controverting CA-1 forms submitted for COVID-19 related coverage. It is unfortunate that during these challenging times, we must also deal with members of management holding their employees to a different standard from what the Department of Labor has determined to be “high risk employment.” Some managers have decided to simply ignore the federal government’s determination that it is “difficult to determine the precise moment and method of virus transmission.”
There is no single person, medical doctor, or scientist in the world, let alone within the United States, who can determine when or how a person was infected with COVID-19. Yet, some supervisors and managers within the Border Patrol believe they have this medical ability and that it is their duty to decide that an employee was NOT infected while on duty and performing their duties as a Border Patrol agent. Unfortunately, these supervisors and managers use information gained during voluntary conversations with agents to challenge these claims.
You are under absolutely NO obligation to divulge any information regarding your family, and you are under absolutely NO obligation to divulge anything other than an exposure to, or a diagnosis of, COVID-19. Furthermore, you should NEVER speculate how, when, or where you or your family became infected.
If you or someone within your household becomes infected with COVID-19, the ONLY information you should share with management is that someone within your household tested positive for COVID-19. You are not obligated to, nor should you, give managers any more information than what is necessary to make management aware that you’ve been exposed to COVID-19 or have been diagnosed with COVID-19.
Federal law, specifically the Genetic Information Nondiscrimination Act (GINA), “prohibits employers from asking employees medical questions about family members.” The law, however, “does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.”
Bottom line: Do NOT reveal any personal information about your family to the agency. If they can, management will utilize this information against you should you file a claim under the Federal Employees Compensation Act (FECA).
Federal law allows employees to be asked whether they are experiencing symptoms of COVID-19, such as whether an employee has fever, chills, cough, shortness of breath, or sore throat. However, employers, including the federal government, “must maintain all information about employee illness as a confidential medical record in compliance with the ADA.”
An ESR does not qualify as a confidential medical record, and there are requirements that must be met for management officials to require an employee to discuss or disclose anything more than a diagnosis of COVID-19 and its associated symptoms. Nothing changes about requests for sick leave; employees have always had, and will continue to have, the ability to self-certify that they are incapacitated and unable to perform their duties, thereby self-certifying that they are eligible for sick leave.
As for submitting a CA-1 for a diagnosis of COVID-19, if you believe that your exposure was work-related, you have the right to submit a CA-1 and request Continuation of Pay (COP), but you must have a diagnosis of COVID-19. As determined by the DOL, Border Patrol agents are considered to be serving in “high-risk employment,” thereby removing the additional burdens of determining “the precise moment and method of virus transmission,” and “burdening the employee with identifying the exact day or time they contracted the novel coronavirus.”
Management cannot refuse to accept your CA-1, nor can they refuse to process the form. To do so is a violation of law, for which you can file a complaint with the DHS Office of Inspector General (OIG), or the CBP Office of Professional Responsibility (OPR). Management retains the right to controvert (challenge) your claim; and as stated above, they will utilize any information that an employee unwittingly provides to support their challenge. Do not provide unnecessary information to management, and do not provide any information about your family to them either.
Below is a sample of the text (the entire document can be accessed here) from the Department of Labor regarding federal employees who have been determined to be serving in “high-risk employment” positions (i.e., law enforcement, first responders, and front-line medical and public health personnel):
“The pandemic caused by the COVID-19 viral disease is impacting how we live and work across the country, and around the world. The U.S. Department of Labor (DOL) is committed to providing support to Federal employees during this difficult time.
“All federal employees who develop COVID-19 while in the performance of their federal duties are entitled to workers’ compensation coverage pursuant to the Federal Employees’ Compensation Act (FECA). See https://www.dol.gov/owcp/dfec/.
“DOL acknowledges, however, that it is difficult to determine the precise moment and method of virus transmission. Therefore, when an employee claims FECA benefits due to COVID-19, federal workers who are required to have in-person and close proximity interactions with the public on a frequent basis – such as members of law enforcement, first responders, and front-line medical and public health personnel – will be considered to be in high-risk employment, thereby triggering the application of Chapter 2-0805-6 of the FECA Procedure Manual. In such cases, there is an implicit recognition that a higher likelihood exists of infection due to high-risk employment. Federal workers in such positions routinely encounter situations that may lead to infection by contact with sneezes, droplet infection, bodily secretions, and surfaces on which the COVID-19 virus may reside. Therefore, the employment-related incidence of COVID-19 is more likely to occur among members of law enforcement, first responders and front-line medical and public health personnel, and among those whose employment causes them to come into direct and frequent in-person and close proximity contact with the public.”
“Accordingly, DOL has created new procedures (Bulletin 20-05 & Bulletin 21-01) to specifically address COVID-19 claims. Employees filing a claim for workers’ compensation coverage as a result of COVID-19 should file Form CA-1, Notice of Traumatic Injury through your employer using the Employees’ Compensation Operations & Management Portal. The new procedures will also call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus.”
If you have any questions, do not hesitate to contact a union representative.